Marriage is considered to be the center and nucleus of a family and society. It acts as a foundation for regulation of the members of a society. As per Hindu Traditions, a marriage is considered to be a sacrament for the same reasons. In case of disparities among the parties to a marriage, there are provisions under which one can opt for a dissolution of marriage; due to which it can also be considered as a civil contract. Therefore, a Hindu marriage has the characteristics of both a sacrament and a civil contract. Hindu marriages are regulated by the Hindu Marriage act, 1955. To provide relief to the aggrieved spouse, there are certain matrimonial remedies that are provided to the individuals to obtain relief. The matrimonial remedies are namely; restitution of conjugal rights( section 9) , judicial separation (section 10 ), void and voidable marriages( section 11 and 12), divorce (section 13), divorce by mutual consent( section 13-B).
The provision for divorce of a Hindu woman is given under section 13 of the Hindu Marriage act 1955. Divorce can be described as a process by which the marriage comes to an end by dissolution. It no longer is legally valid after its dissolution. On dissolution of a marriage, the parties involved are free from matrimonial obligations and restrictions, and are free to marry again. As per the provisions of the act; either of the parties of a marriage can file a petition for divorce in a district court asking for the dissolution of the marriage. On convincing the court for the divorce; the court on satisfaction can grant a decree for divorce under section 13 of the act. There are certain restrictions as to filing a petition within a year of marriage (section 14).
GROUNDS FOR FILING A DIVORCE
The petition for filing a divorce can be based on; adultery, cruelty, desertion, conversion( to other religion), insanity, leprosy, venereal disease, renunciation of the world, unheard for 7 years, after decree of judicial separation, after decree of restitution of conjugal rights.
The word reference importance of adultery is that a wedded man commits infidelity in the event that he has intercourse with a lady with whom he has not gone into wedlock. In India adultery was a criminal offence under section 497 , but was later deemed unconstitutional by Chief Justice Deepak Misra. It is now only a ground for divorce. The burden of proof lies in the hands of the petitioner. Considering the fact that proving adultery is very difficult , circumstantial evidence is accepted and considered. Sexual intercourse is an essential element in adultery without which it fails to stand as a valid ground. In the case of Subbarama Reddiar v. Saraswati, the husband returned home late and found his wife with an unrelated person in the bedroom. The Madras High Court held that adultery may be inferred unless the act can be explained by some innocent explanation. There are various exceptions to constituting adultery such close movement( walking with someone in a park), love letters etc.
Prior to the amendment of 1976, cruelty was only a ground for judicial separation but after the amendment it was a ground for divorce too. Cruelty means such conduct as to cause physical violence of causing bodily hurt or danger to the person of the petitioner. Cruelty can be classified into physical and mental cruelty. Physical injury can be caused due to acts of violence by one spouse to another resulting in injury to body, limb or health or causing reasonable apprehension. Physical cruelty can include injury to private parts during intercourse ( Ashok v. Santosh). Mental cruelty are acts of mental torture such as cursing, mental cruelty, mental agony etc. In the case of Sobhadevi v. Bhima, aggressive and violent behavior of the husband was classified as cruelty. Mere drinking as a habit cannot constitute cruelty.
Desertion was only a ground for judicial separation before the amendment of 1976, but after the amendment it was considered a ground for divorce as well . Desertion is abandoning or leaving the spouse by the other spouse without any reasonable cause. For instance, if a husband leaves his wife and goes to stay in his matrimonial house without reasonable cause, he is considered to be the deserting spouse and the wife is considered to be the deserted spouse. The filing of the petition must not be less than two years of the desertion. Reasonable cause is an essential to constitute desertion. In the case of Cropala v. Pushpadevi , the court clearly stated that to constitute desertion, there must not be any reasonable cause. The consent or wish of the deserted spouse also acts as an essential.
Conversion can be described as a process by which a person gets converted from one religion to another. If any of the spouse converts from Hinduism, it can stand as a ground for the other spouse to seek for divorce. For instance, if a husband in a Hindu marriage converts from Hinduism to Christianity, it is a good ground for the wife to seek divorce.
If a spouse is of unsound mind; it acts as a ground for divorce. As per the amendment of 1976, if the respondent is of unsound mind or is incurably suffering from any mental disorder, the petitioner can not reasonably expected to live with the respondent (eg- epilepsy) .
If the respondent is suffering from a virulent and incurable form of leprosy; it can act a strong ground for Divorce. In the case of Swarajya Laxmi v. Padma rao, the husband was granted Divorce purely on the basis of the wife suffering from leprosy.
If any of the spouse is suffering from venereal disease at the time of filing the petition. It acts as a ground for divorce
RENUNCIATION OF THE WORLD
The petitioner can seek for divorce if the respondent has renounced the world in order to join a religious order. The renunciation requires relinquishment of all property and worldly affairs.
UNHEARD FOR SEVEN YEARS
If the spouse goes missing or his/her location or whereabouts cannot be traced for a period of seven years, the other spouse can presume his/her death and can move for a petition for divorce.
AFTER DECREE OF JUDICIAL SEPARATION
Section 10 of the act provides for judicial separation as a period of reconciliation. If the spouses fail to reconcile or resume their matrimonial life with a period of one year from the decree of judicial separation, either of the spouses can file for a divorce.
AFTER DECREE FOR RESTITUTION OF CONJUGAL RIGHTS
If the parties do not rejoin/ resume living in their matrimonial home within one year after obtaining the decree, either of the parties can move for a divorce .
DIVORCE BY MUTUAL CONSENT
Section 13 B of the act states that if both the parties to a marriage agree to dissolve their marriage and are willing to. They can obtain it by fulfilling the prerequisites as prescribed by the act .
GROUNDS AVAILABLE TO THE WIFE ALONE
There are certain remedies available to the wife alone such as;
- a) Bigamy : if the husband whose wife is alive marries another woman, it amounts to Bigamy. The first wife can file for a divorce under this ground. The second marriage is invalid as per the law.
- B) case of sexual offenses: If the husband is proved guilty of any sex offences, a wife can file for a divorce.
- c) After decree of maintenance: The wife, who has been granted the decree of maintenance can file a petition for divorce if the cohabitation between the parties has not taken place even after the elapse of one year.
- d) Repudiation of marriage: If a woman was married below the age of 15, she can apply for divorce after attaining 18 years of age irrespective of the fact of the consummation of the marriage.
The Hindu marriage act of 1955 provides various provisions for divorce with reasonable cause to protect the parties in a marriage. This act codifies the laws relating to the marriage of Hindus. It brought about the concepts of divorce and separation which had not earlier existed in the Sastrik law. It brought about uniformity of law among all sections of Hinduism.
Author: Anil George,
Christ University, 2nd year